Corbett, Suzanne v. Ashfield, Town of - Fire Department (SPR 20140459)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 17, 2014 SPR14/459; SPR14/460 Ms. Donna MacNicol, Esq. MacNicol and Tombs, LLC 393 Main Street P.O. Box 985 Greenfield, MA 01301 Dear Attorney MacNicol: I have received petitions from Suzanne M. Corbett appealing the responses of the Town of Ashfield Fire Department (Department) to her requests for public records. G. L. c. 66, § 1O (b ); see also 950 C.M.R. 32.08(2). Ms. Corbett has appealed the hourly rate of $16.00 for search and copying of the records, and has appealed because she has not received all the responsive records. Specifically, Ms. Corbett requested copies of: All public record requests, including all requests made by Robert Brothers Lumber Company that were made from November 1, 2012 through May 31, 2013, including all subsequent correspondence by the requester and/or agencies that were directed to the Fire Department and/or any Fire Department personnel. Exclude all requests made by: Suzanne Corbett, Deborah Nicholson, Kachina Yuryan and Sherrill Jourdan. Response Time It is my understanding that Ms. Corbett made her "revised" request in April2014, but Delmar Haskins, Fire Chief for the Ashfield Fire Department (Department) did not respond with a written, good faith estimate until June 18, 2014. The Department is reminded that a custodian has a duty to comply with a public records request as soon as is practicable, without unreasonable delay, and always within ten (10) calendar days. G. L. c. 66, § 10(a); 950 C.M.R. 32.05(2). The ten-day provision is a maximum, rather than a minimum time frame for complying with a public records request. Boston Globe Newspaper Company v. Commissioner of Education, 439 Mass. 124 (2003). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Donna MacNicol, Esq. SPR14/459; SPR14/460 Page Two October 17, 2014 Fee Estimate for Search Time Ms. Corbett asked this office to review the June 18th written estimate, in particular the two (2) hours of search time at the hourly rate of sixteen dollars per hour ($16.00). A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). The Regulations define "search time" as the time needed to locate, pull from the file, copy andre-file public records. The search time must reflect the actual cost of complying with a particular request. 950 C.M.R. 32.03. In a discussion with an attorney on my staff, Chief Haskins informed this office that the $16.00 per hour is a lower rate than would have been charged had the Chief used his own rate. Chief Haskins informed this office that he had to hand search all the paper records in order to satisfy the request. While he conducted the search himself, the rate is that of a lower paid clerical staff member in the Town of Ashfield. I find that the amount of time for the search, including copying and re-filing the records at the sixteen ($16.00) dollar per hour rate is reasonable and in compliance with the Regulations. Ms. Corbett is also appealing the Department's response because she was not provided all the records responsive to her request for all public records requests filed with the Department, including all subsequent correspondence from the requesters and the Department. In her petition letter to this office, she states that the Department has withheld specific emails and letters, in particular those related to the Roberts Brothers Lumber Company requests. In a conversation with Chief Haskins on October 8, 2014, one of my staff attorneys asked if all records have now been provided as requested. Chief Haskins informed this office that you had advised him not to disclose certain of the records because those records were not public. My staff attorney explained that the Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c); 950 C.M.R. 32.08(4 ). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town ofthe Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § IO(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). I find that the Department has failed to meet its burden under the Public Records Law.

Ms. Donna MacNicol, Esq. SPR14/459; SPR14/460 Page Two October 17, 2014 Accordingly, whereas I find that the fee estimate is reasonable I will consider this administrative appeal closed with the proviso that the Department must meet its burden under the Public Records Law. The Department is hereby ordered to provide Ms. Corbett with all records that have been withheld within ten (1 0) calendar days, or in the alternative provide Ms. Corbett with a detailed, written response claiming any public records exemptions that allow the Department to withhold the records. To assist the Town of Ashfield with this appeal and with responding to all public records requests in the future, I am enclosing with this letter a copy of The Guide to the Massachusetts Public Records Law. As with the Retention Manual this document is available online. This administrative appeal is closed. In the event a request for reconsideration is honored by this office an acknowledgment will be provided to all parties, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests for reconsideration filed more than thirty (30) days after the date of this letter will not be considered. Supervisor ofRecords cc: Ms. Suzanne M. Corbett Chief Delmar Haskins, Ashfield Fire Department